Birmingham Ry., Light & Power Co. v. Barrett

• Decision Date: 21 November 1912
• Citation: 60 So. 262,179 Ala. 274
• Parties: BIRMINGHAM RY., LIGHT & POWER CO. v. BARRETT.
• Court: Alabama Supreme Court

60 So. 262

179 Ala. 274

BIRMINGHAM RY., LIGHT & POWER CO. v. BARRETT.

Supreme Court of Alabama

November 21, 1912

On Rehearing, December 17, 1912.

On Rehearing.

Appeal from Circuit Court, Jefferson County; E. C. Crow, Judge.

Action by Sadie C. Barrett against the Birmingham Railway, Light &amp Power Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The following is the complaint: Count 1: "Plaintiff claims of the defendant, a private corporation, the sum of $10,000 damages in this: That on and prior to the 25th day of June defendant was a common carrier of passengers for reward between the towns of Ensley and Wylam, in said state and county, and that on said date plaintiff was a passenger on one of defendant's cars, her destination being Wylam Alabama, and while engaged about its carriage as such, and while plaintiff was in the act of alighting from said car, by reason of a sudden or unusual jerk of said car, the plaintiff, a passenger on said car, was thrown with great force and violence therefrom, and injured as follows: [Here follows catalogue of injuries and damages.] Plaintiff avers that her said injuries were proximately caused by the defendant in the negligent manner in which it run or operated its said car." Count 2: Same as 1, down to and including the allegations of injuries and damages, and adds "Plaintiff avers that her said injuries were proximately caused by the wantonness of the defendant's servants or agents in charge of the operation of said car, and while acting within the line and scope of his employment, in that he wantonly inflicted the injuries upon the plaintiff while engaged in and about the carriage as such passenger."

The demurrers were that the first count does not state a cause of action, it does not appear that defendant violated any duty owing to plaintiff, that the facts relied upon do not show negligence as a matter of law, and that it does not appear that there was any wanton or willful act. The demurrers were likewise interposed to the second count.

The following charges were given for the defendant: (1) Set out in the opinion. (2) "The court charges the jury, if they are reasonably satisfied from the evidence that the material averments of the first count of Mrs. Barrett's complaint are true, and that she was not guilty of contributory negligence, then you should find for the plaintiff." (3) "It is not negligence as a matter of law for a passenger on a street car to get up from her seat when a car is slowing down for the station, and go upon the platform preparatory to alighting therefrom, when it stops at the station." (4) "If the jury are reasonably satisfied from the evidence that the plaintiff was injured in the manner and form alleged in the complaint, as a proximate consequence of defendant's negligence as alleged therein, and that she was not guilty of contributory negligence, then you must find a verdict for the plaintiff." (5) "If the jury is reasonably satisfied from the evidence that the car was started or stopped with a sudden or unusual jerk as alleged while plaintiff was in the act of alighting from the car, and she was guilty of no contributory negligence, and such jerk proximately caused her injuries, you must find a verdict for the plaintiff."

Tillman, Bradley & Morrow and Charles E. Rice, all of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

SOMERVILLE J.

1. It is well settled that, when a complaint for personal injuries specifies particular acts or omissions of the defendant as constituting the negligence upon which the action is founded, the complaint is insufficient on apt demurrer, unless such acts in themselves show or suggest negligence, and a general averment of negligence does not cure the defective specification. Birmingham O. & M. Co. v. Grover, 159 Ala. 276, 281, 48 So. 682; B. R. L. & P. Co. v. Bennett, 144 Ala. 372, 39 So. 565. But where the complaint merely states the fact and res gestæ of the injury, not imputing the defendant's negligence to them, and without specifying the negligent acts or omissions relied on, a general averment that the plaintiff was injured as a proximate result of the negligence of the defendant in respect to the duty owed to the plaintiff is sufficient. And this principle, of course, applies to counts for wanton as well as for simple negligence. Of this character are the cases of B. R. L. & P. Co. v. Jordan, 170 Ala. 535, 54 So. 280, and B. R. L. & P. Co. v. Gonzalez, 61 So. 80, where the complaints were substantially like the first count of the complaint in the instant case. On the authority of those cases we hold that both counts of this complaint were sufficient, and that the demurrers thereto were properly overruled.

2. The second count, after alluding to the wantonness of defendant's servants or agents (in the plural), charges that while acting within the line and scope of "his" employment "he" wantonly inflicted, etc. This, however, is a mere grammatical slip, perhaps a typographical error, and, if a demurrable defect at all, is not reached by the grounds of demurrer exhibited.

3. At plaintiff's request the trial court gave to the jury the following charge: "It is the duty of a street car company to exercise the highest degree of care known to human skill and foresight in regard to the carriage of its passengers, and the carrier is liable for the slightest degree of negligence." A charge that "the law requires the highest degree of care and diligence and skill by those engaged in the carriage of passengers by railroads known to careful, diligent, and skillful persons engaged in such business" was approved in M. & E. Ry. Co. v. Mallette, 92 Ala. 209, 215, 9 So. 363, 365, with the observation by McClellan, J., that "this is the universal doctrine of the courts and text-writers." In A. G. S. R. R. Co. v. Hill, 93 Ala. 514, 520, 9 So. 722, 724 (30 Am. St. Rep. 65), it was said that "the law imposes upon common carriers the duty of exercising the highest degree of care, skill, and diligence in the transportation of passengers, and holds them responsible for the consequences of the slightest negligence resulting in injury," and a charge that the law requires "strict diligence" of such carriers was held to be well within the rule. In G. & A. U. Ry. Co. v. Causler, 97 Ala. 235, 12 So. 439, after citing the foregoing and other cases and several leading text-writers, the conclusion was: "We adhere to the principle so often stated by this court, and hold that only skillful and reasonably prudent persons should be placed in control of, or in responsible positions on, trains which transport passengers for hire, and that the highest degree of care and diligence is exacted of them in the performance of their several duties and functions. The slightest negligence on their part causing injury to a passenger will render the railroad company liable." In that case a charge imposing liability on the carrier "because its agents failed to take all such precautions to avoid the injury as would be suggested by the highest degree of care, skill and diligence, by men of extraordinary care, skill and diligence in carrying passengers by dummy line railways," was held erroneous on account of the too exacting requirement of the italicized clause.

The Alabama cases are again reviewed by Justice Denson in Southern Ry. Co. v. Burgess, 143 Ala. 364, 42 So. 35, and a charge that the carrier owes to passengers "the duty to exercise the highest degree of care, skill, and diligence known to very careful, skillful, and diligent persons engaged in like business" was held not erroneous. In Southern Ry. Co. v. Cunningham, 152 Ala. 147, 44 So. 658, a charge that the carrier is bound "to exercise the strictest vigilance and the highest degree of care * * * that the means of conveyance employed and the circumstances would permit" was approved. In Irwin v. L. & N. R. R. Co., 161 Ala. 489, 50 So. 62, 135 Am. St. Rep. 153, 18 Ann. Cas. 772, it was said by Mayfield, J., arguendo: "The law is very strict and stringent as to the duties it imposes upon common carriers for the safety of passengers; * * * [but] every passenger must and does assume the risks incident to the mode of travel he selects, when they cannot be avoided or prevented by the utmost care and skill on the part of the carrier." The carrier was there held not liable for injury to its passenger from a missile thrown through the car window, because such an assault could not have been reasonably anticipated or provided against. So in Ala. City, etc., Ry. Co. v. Sampley, 169 Ala. 372, 53 So. 142, it was said, by Sayre, J., that "common carriers are obliged, not only to carry passengers safely, but also to conserve by every reasonable means their comfort and safety throughout the journey."

From the several decisions above referred to we deduce these principles: (1) Common carriers of passengers are bound, with respect to their undertaking to safely carry them, to exercise the highest degree of care, skill, and diligence and are liable to passengers for the slighest degree of negligence proximately resulting in injury to them. (2) The "highest degree" of care, skill, and diligence is a relative term, and means the highest degree required by the law in any case where human safety is at stake, and the highest degree known to the usage and practice of very careful, skillful, and diligent persons engaged in the business of carrying passengers by similar means and agencies. (3) It does not mean that every possible or conceivable care and precaution which might increase, or even assure, the safety of the passenger, must be taken, but only such as are reasonably practicable under the circumstances; i. e., reasonably consistent with the...